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From the Courthouse to the Police Station: Combating the Dual Biases That Surround Federal Money-Laundering Asset Forfeiture

Owen Sucoff

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The money-laundering asset forfeiture laws were enacted during the height of Congress’s two-decade fight against the financial underpinnings of organized crime and the drug trade and represent the farthest-reaching provisions of their kind. They provide for the forfeiture of all property “involved in” an offense, a definition that includes anything which makes a laundering offense either harder to detect or easier to commit.
Despite being a powerful tool in the legitimate fight against crime, laundering forfeiture’s broad reach brings serious risks of abuse, and institutional biases favoring increased forfeiture have developed in both the courtroom and the police station. An expansive interpretation of the “involved in” language combines with both the limited utility of the Excessive Fines Clause and a complete lack of judicial discretion on the part of sentencing judges to create a “judicial bias” in favor of forfeiture. A similar “enforcement bias,” borne from the Department of Justice’s policy of using forfeiture as a revenue generator, encourages law enforcement agencies to increase both the magnitude and quantity of forfeitures.
This Note argues that recurring abuse of the forfeiture power can only be prevented through a combination of two major reforms: (1) amendment of the money-laundering-forfeiture statute to include a proportionality requirement fashioned after the Excessive Fines Clause; and (2) alteration of the equitable-sharing disbursement program to eliminate the profit incentives encouraging increased forfeitures.
46 New Eng. L. Rev. 93

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